Opinion
No. CR03-101443
March 8, 2005
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO PRECLUDE IMPOSITION OF MANDATORY MINIMUM SENTENCE
Background
By jury verdict returned November 22, 2004 the defendant was convicted of one count of Assault in the First Degree By Means of a Dangerous Instrument, in violation of Connecticut General Statutes § 53a-59(a)(1). Sentencing is scheduled for this date, March 8, 2005. On February 15, 2005 the defendant filed a Motion to Preclude Imposition of Mandatory Minimum Sentence by which he seeks to avoid the impact of Connecticut General Statutes § 53-59(b)(1) which provides that any person convicted of § 53a-59(a)(1) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court. Assault in the First Degree in violation of § 53a-59 is generally a Class B felony punishable under § 53a-35a(5) by a term of imprisonment not less than one year nor more than twenty years (with no limitation on the court's power under § 53a-28(b) to suspend the execution of such sentence entirely or after a period set by the court). The defendant seeks to be sentenced under that provision, without exposure to the five-year mandatory minimum sentence of § 53a-59(b)(1). The defendant claims by his motion that § 53-59(b)(1) which mandates a five-year non-suspendable term of incarceration upon conviction of Assault in the First Degree by Means of a Dangerous Instrument is unconstitutional in violation of his rights under the equal protection clauses and the due process clauses of the federal and state constitutions. The gist of the defendant's claim is directed to the fact that a person convicted of Manslaughter in the First Degree in violation of § 53a-55(a)(1), also a Class B felony and claimed by the defendant to be a more serious crime than Assault in the First Degree By Means of a Dangerous Instrument, would not be exposed to any mandatory minimum non-suspendable sentence, and that the sentencing scheme therefore assigns a lesser penalty to a greater crime. As the defendant says in his memorandum:
The evidence at trial was that the defendant, during a confrontation with the victim at a bar, struck the victim in the face with a glass, causing serious physical injuries.
§ 53a-59(a)(1) provides: "A person is guilty of Assault in the First degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument."
Although the motion itself claims violations of both the federal and state constitutions, all cases cited by either party in their memoranda of law or during oral argument on March 7, 2005 are grounded on the guarantees of the federal constitution and neither party has presented any separate analysis of the defendant's claims under article first §§ 8 and 20 of the Connecticut constitution. This decision is therefore limited to the federal constitutional claims.
§ 53a-55(a)(1) provides: "A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or a third person."
. . . under the present statutory scheme, for intentionally seriously injuring another with a glass, a defendant faces a minimum of five years incarceration, whereas for killing another with that same glass when only intending to seriously injure them [sic], no mandatory minimum period of incarceration applies. It is this statutory scheme from which the defendant applies to this court for relief as violative of his equal protection and due process guarantees . . . This statutory scheme is neither reasonable nor rational in that it provides for a far lesser sentence (entirely suspended) for a more severe consequence (killing another). Defendant's Memorandum 2, 3.
In equal protection terms, the defendant claims that within the class of assailants using a glass or other dangerous instrument, who intend to inflict serious physical injury, those whose victims survive face a harsher minimum punishment than those whose victims die, and that this sentencing scheme is an inversion of accepted sentencing principles because it arbitrarily and irrationally punishes the less culpable classification more severely than the more culpable classification. In terms of substantive due process, the defendant points out the same claimed arbitrariness and irrationality of the sentencing scheme applicable to the two offenses.
Discussion
A party challenging the constitutionality of a statutory scheme bears a heavy burden. "First, in general, as in any constitutional challenge to the validity of a statutory scheme, the statutory scheme is presumed constitutional . . . and the burden is on the one attacking the legislative arrangement to negate every conceivable basis which might support it . . . Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2367, 125 L.Ed.2d 257 (1993)." (Internal quotation marks omitted.) State v. Wright, 246 Conn. 132, 138-39 (1998). And a party challenging the constitutionality of a validly enacted statute bears the heavy burden of proving the statute unconstitutional beyond a reasonable doubt. Beccia v. Waterbury, 192 Conn. 127, 133 (1984), State v. Wilcheski, 242 Conn. 211, 217-18 (1997), State v. McMahon, 257 Conn. 544, 551 (2001).
With respect to the defendant's equal protection claim, the parties agree that the proper standard of review is the rational basis standard. Rational basis review is satisfied so long as there is a plausible policy reason for the classification, and it is irrelevant whether the conceivable basis for the challenged distinction actually motivated the legislature. State v. Wright, supra, 246 Conn. at 139-40, State v. Moran, 264 Conn. 593, 607 (2003). Under an equal protection rational basis review the classification must be "rationally related to some legitimate government purpose" to withstand challenge. State v. Wright, supra, 246 Conn. At 144, quoting Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., 239 Conn. 708, 756 (1997). The parties also agree that the defendant's substantive due process claim and equal protection claim should be subject to the same rational basis analysis, as they are virtually indistinguishable. As the Supreme Court said in State v. Moran, supra, ". . . although the defendant's claim is ill-suited to the framework of equal protection, we choose to proceed in the framework of equal protection analysis by assuming arguendo that the two categories of defendants identified by the defendant are similarly situated with respect to the statutory scheme. Doing so allows us to engage in a rational basis analysis that, for all material purposes, is indistinguishable from the analysis in which we would engage in a due process claim." 264 Conn. at 608.
Having basically agreed as to the foregoing ground rules of this analysis, the parties are in serious disagreement as to the crucial issue whether or not the statutory sentencing scheme in question passes a rational basis review.
Citing primarily State v. Jenkins, 198 Conn. 671 (1986), State v. O'Neill, 200 Conn. 268 (1986), and State v. Ceballos, 2001 WL 1132201 (Conn.Super.) ( 30 Conn. L. Rptr. 47) (Docket No. CR6490700, Devlin, J. August 16, 2001), the defendant argues that the scheme of imposing a greater punishment for a lesser similar crime, with little or no further analysis, demonstrates a total lack of rational basis for the statutory scheme. Jenkins was a sui generis case where the court found a likely legislative error in enacting a 1975 amendment to the kidnapping statutes whereby a one-year mandatory non-suspendable sentence was assigned to a newly created offense of kidnapping in the first degree with a firearm, although the pre-existing statute for kidnapping in the first degree (with no requirement that a firearm be involved) was a Class A felony punishable by a term of imprisonment of not less than ten nor more than twenty-five years, no part of which could be suspended. The court invoked the doctrine of repeal by implication to hold that the 1975 amendment (codified as § 53a-92(b), Connecticut General Statutes) was meant to apply to all prosecutions for kidnapping in the first degree, and therefore the one-year mandatory minimum (rather than the pre-existing ten-year mandatory minimum) would apply to the defendant who had been convicted of kidnapping in the first degree. The court did so "to avoid a constitutional confrontation," 198 Conn. at 1057, noting that "[s]uch a discrepancy necessarily implicates the equal protection clauses of our federal and state constitutions," 198 Conn. at 677, and "It is not rational and sensible to impose a lesser term of mandatory imprisonment on one convicted of kidnapping with the use of a firearm than on one convicted of a similar crime not involving a firearm." Id. O'Neill, decided just four months after Jenkins, relied upon the Jenkins constitutional rationale to find an equal protection/due process violation in the arson statutes whereby the defendant in that case, convicted of arson in the first degree in violation of Connecticut General statutes § 53a-111(a)(1) was sentenced to a mandatory non-suspendable sentence of ten years, whereas, under the holding in State v. Dupree, 196 Conn. 655 (1985), the sentence of a person convicted of arson murder could be suspended in part. Citing Jenkins, the O'Neill court, without any discussion of any rational basis for the discrepancy, found that ". . . to link a more serious crime with a less serious penalty" 200 Conn. at 289, offended equal protection guidelines. Ceballo, decided in 2001, relied on Jenkins and O'Neill to find an equal protection violation in the sexual assault statutes on behalf of a defendant who was convicted of sexual assault in the first degree in violation of Connecticut General Statutes § 53a-70(a)(2). Because his victim was less than 10 years old, § 53a-70(b) mandated a non-suspendable minimum term of ten years. The defendant claimed an equal protection/due process violation by comparing his potential sentence to the situation faced by a person convicted of aggravated sexual assault in the first degree in violation of § 53a-70a who would be exposed to only a five-year mandatory minimum sentence. Judge Devlin found a similar "compelling constitutional parallel" between the sexual assault/aggravated sexual assault statutory scheme and the schemes struck down in Jenkins and O'Neill, and granted the defendant's motion to preclude the imposition of the mandatory minimum ten-year sentence.
The state primarily relies upon State v. Wright, supra, and State v. Moran, supra, to urge the court to delve into the "ample scope of discovery of a rational basis for the different penalties for each offense," Wright, at 153, Moran at 677, to uphold the statutory sentencing scheme facing one convicted of intentional assault with a dangerous instrument (five-year mandatory minimum) as compared with no mandatory minimum sentence facing one convicted of manslaughter in the first degree. Indeed, in Wright and Moran the Supreme Court did go beyond the initial apparent lack of sentencing proportionality to find nonetheless rational bases for the sentencing schemes at issue. In Wright the constitutional claim related to the alleged discrepancy between the classification of larceny in the second degree from the person of another in violation of Connecticut General Statutes § 53a-123(a)(3) as a Class C felony punishable by a maximum penalty of ten years imprisonment and the classification of robbery in the third degree by the taking of property with the use or threat of the immediate use of physical force in violation of § 53a-136 as a Class D felony punishable by a maximum penalty of five years imprisonment. The defendant argued that the involvement of physical violence, or the threatened use thereof, made the robbery offense a more serious offense and that the felony classifications therefore lacked a rational basis. The court held that the legislature could have concluded, as a categorical matter, that larceny from the person is a more serious offense than simple robbery, and therefore warrants a more severe penalty. "In our view, the legislature rationally could have concluded that the `trespass to the person of the victim' . . . that adheres in larceny from the person potentially is a source of greater harm than the force or threat of force that characterizes a simple robbery." 246 Conn. at 145, 146. The court also made it clear that the analysis to be engaged in should be "categorical," 246 Conn. at 145, and rejected the defendant's hypothetical scenarios featuring conceivable simple robberies that are more serious than conceivable larcenies from the person. "Courts are compelled under rational-basis review to accept a legislature's generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it is not made with mathematical nicety or because, in practice, it results in some inequality . . . The problems of government are practical ones and may justify, if they do not require, rough accommodations . . ." 246 Conn. at 148, quoting (citations and internal quotation marks omitted) from Heller v. Doe, supra, 509 U.S. at 321. The Wright court also found a rational basis in the statutory scheme in that the legislature has a legitimate interest in deterring crime by setting more severe penalties for crimes that the legislature reasonably perceives as being more easily committed than other crimes, regardless of the relative seriousness of the prohibited conduct. "[T]ypical larcenies from the person . . . can be committed in an instant . . ." 246 Conn. at 149. And in Moran, supra, the court engaged in a similar analysis to find rational bases for the sentencing scheme whereby there is a five-year mandatory minimum sentence for the crime of conspiracy to commit robbery in the first degree, but no mandatory minimum for the crime of conspiracy to commit murder. The court's initial focus was on the likelihood that, absent any mandatory minimums, a sentencing court would have imposed a sentence of less than five years. ". . . [T]here is a plausible reason for not specifically requiring that person guilty of conspiracy to commit murder serve a minimum sentence; namely, it is unlikely that a court would impose a sentence of less than five years for that particular crime . . . Conversely, the legislature reasonably could have determined that courts were less likely to impose a minimum of five years imprisonment on a defendant who is guilty of conspiracy to commit robbery in the first degree. The legislature, therefore, to address that possibility, prescribed a minimum sentence for that particular crime. Accordingly, the sentencing scheme rationally serves the legislature's interest in protecting the general welfare by imposing on a defendant a minimum sentence for a crime that a court might not have imposed otherwise." Moran, supra, 264 Conn. at 611. Another rational basis found by the Moran court includes the finding that the legislature reasonably could have determined that conspiracy to commit robbery occurs more often than conspiracy to commit murder, and that deterrence of a more frequently committed crime is a reasonable legislative objective. 264 Conn. at 612.
Both Wright and Moran distinguish the court's approach in discerning one or more rational bases for seeming disproportionalities in sentencing schemes from the approach of Jenkins, and O'Neill in relying solely on the disproportionality to find a constitutional deficiency, by focusing on the relationship between the two offenses under the microscope in each case. In Jenkins and O'Neill (and in Ceballo, which follows Jenkins and O'Neill) the two crimes whose sentences were compared with each other were very closely related. In fact, in each case, the so-called less serious crime was a lesser included offense of the so-called more serious crime. That is, the more serious crime could not be committed without first committing the less serious crime, e.g. kidnapping in the first degree and kidnapping in the first degree with a firearm involved in Jenkins. In Wright and Moran, however, the crimes being compared to each other were found to be separate and distinct crimes, which called for a more comprehensive examination in looking for a possible rational basis. "Under those circumstances [the lesser included offense situation in Jenkins] we simply could not discern a rational basis for the discrepant sentencing scheme. In contrast, as we have explained previously, in the present case the defendant's claim is based upon a comparison between the two sentences for two separate and distinct crimes, and, thus, there is ample scope for discovery of a rational basis for the different penalties for each offense." Wright, supra, 246 Conn. at 153.
Although he admits that Assault in the First Degree with a Dangerous Instrument is not a lesser included offense of Manslaughter in the First Degree, the defendant points to the similarities between those offenses in urging the court to follow a Jenkins/O'Neill analysis to find the discrepant sentencing scheme to be a denial of equal protection and due process based solely or primarily on his claim that the more serious crime carries a lesser minimum penalty than the less serious crime. For instance, the defendant points out that each offense requires an intent to cause serious physical injury and the infliction of serious personal injury, but admittedly with a different result. The state, on the other hand points out the differences between the two statutes and urges a Wright/Moran analysis. As the state points out, neither statute is a lesser included offense of the other, and each has an element that the other does not have. Assault in the First Degree with a Dangerous Instrument has the element of use of a deadly weapon or dangerous instrument; Manslaughter in the First Degree does not. Manslaughter in the First Degree has the element that death has been caused; assault in the first degree with a dangerous instrument does not. Although, to make the statutes look more similar, the defendant has posited a hypothetical manslaughter scenario where the victim of an assault with a glass dies of his injuries, that is the type of hypothetical scenario of conceivable crimes rejected in Wright. The analysis must be "categorical" i.e. by the statutory elements. Although this situation does seem to the court to lie somewhere between the CT Page 4350 Jenkins/O'Neill situation and the Wright/Moran situation, on balance this Court finds that the differences between the statutes are sufficient to invoke a Wright/Moran analysis and the pending motion will be decided on that basis.
At oral argument on March 7, 2005 counsel for the defendant characterized the two offenses as "first cousins."
In Wright it was pointed out that each of the crimes under consideration (larceny from the person and simple robbery) was an aggravated form of larceny, and that the differentiating factor is the nature of the aggravating characteristic of each offense. In that case the legislature had decided to punish more severely the aggravating factor of taking property directly from the person, and not the aggravating factor of the use or threat of violence, and that decision was upheld on a rational basis test. In this case we are dealing with the scheme of punishment of crimes of violence against the person, and there are likewise two aggravating factors at issue. The legislature has decided to punish more severely the aggravating factor of use of a dangerous instrument and not the aggravating factor of death of the victim. Can that decision pass a rational basis test under Wright and Moran? This court finds that it can. The legislature could reasonably have relied on any one of the following factors which would be a rational basis for that decision and form a plausible policy reason for the classification. The legislature could have reasonably enacted this sentencing scheme: (1) to reduce the number of permanent and disabling or disfiguring injuries suffered by assault victims, and the attendant societal costs, by putting a mandatory minimum sentence on the use of deadly weapons or dangerous instruments which are far more likely to cause such injuries than an assault by pushing or fist fighting, (2) to deter the commission of serious assault offenses upon the belief that they are easier to commit and more frequently committed than homicide offenses, and (3) to deter serious assault offenses with a five-year mandatory sentence, and not manslaughter offenses, upon the belief that a person convicted of manslaughter in the first degree would probably not in any event receive a sentence less than five years to serve, but a person convicted of assault in the first degree with a dangerous instrument might otherwise receive a sentence of less than five years to serve. Since the defendant has not negated these factors as rational bases for the statutory scheme complained of, this court is unable to find that the statutory scheme violates the defendant's guaranteed rights to equal protection of the law and due process of law.
Order CT Page 4351
For the foregoing reasons the defendant's Motion to Preclude Imposition of Mandatory Minimum Sentence is denied.
BY THE COURT:
Alfred J. Jennings, Jr. Judge